A judge should not continue to try a case alone, after discharging the jury because of jury tampering, where an â€˜informed objective bystanderâ€™ might legitimately conclude that there was a real possibility of bias by the judge. So held the Court of Appeal (Criminal Division) in a judgement given on 17 November, allowing an appeal by a defendant known only as KS under section 47 of the Criminal Justice Act 2003. The appeal was against an order made by a crown court judge, during the appellantâ€™s trial for money-laundering offences, to discharge the jury under section 46 of that Act because of jury tampering, and continue as a judge-alone trial.

The defendant was alleged to have been involved in a very substantial VAT “carousel” fraud and the arrangements made for laundering the proceeds. His was the tenth trial in which different aspects of the fraud, and the roles of numerous different individuals, were examined. Many of them were convicted. Following conviction, sentences were imposed, and confiscation proceedings conducted. Judge A presided over all these trials and post trial hearings. In the first of this group of trials the Crown alleged that the appellant was one of those directly involved in the conspiracy to defraud with particular responsibility for laundering the proceeds. He was acquitted of conspiracy to cheat the Revenue and of one count of money laundering and the jury was unable to agree verdicts on two counts of money laundering. The Crown proceeded to a fresh trial of the appellant on substantive counts, adding two further similar counts to the indictment. After the jury had retired, the judge concluded that tampering had taken place and ordered the jury to be discharged. He found that it would be fair to the defendant for the trial to continue without a jury, and ordered accordingly.

Delivering the judgment of the court, the Lord Chief Justice, Lord Judge, said that it was an unusual and indeed an extreme case. By the time this tenth trial was coming to an end Judge A was inevitably aware of a vast body of information affecting their client of which the defence would have been ignorant and which therefore would not have been addressed in the present trial. â€œEveryone of those identified in the counts in the present indictment were said to have been jointly involved with the appellant. Each of them was convicted in trials over which Judge A had presided. Some of his observations about the appellant himself in the course of his sentencing remarks were specific to and critical of the appellant. None of these considerations, even taken together, prevented him acting as the trial judge when the jury was vested with the responsibility for the verdict. However taking them together, and examining them in their overall context, we have concluded that the objective bystander, considering the question which arose when the judge himself became responsible for the verdict, would be left with precisely the same concerns articulated by the judge in the course of the argument and which, in the result, he was persuaded with some hesitation to set asideâ€¦For these reasons this appeal will be allowed.â€.

In an interesting postscript, the judgement concluded that â€œthe layout of X Crown Court, and the opportunities for smoking available for those who wish to smoke, are unsatisfactory. They must be reconsidered, at any rate in relation to trials lasting more than a day or two, so as to avoid the inevitable risk of jury contamination where jurors and members of the public congregate together to have a smokeâ€. The full text of the judgement can be found at:

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Mike Gribbin is a retired Civil Servant with wide experience, including the drafting and implementation of Parliamentary legislation and regulations. He is the editor of “Criminal Offences Handbook”, a uniquely comprehensive guide to more than one thousand ways to fall foul of UK criminal law. He is Editor of the Upper Case Legal Journal and has been writing blog posts for the past eight years.